DOLPHIN DRILLING PERSONNEL PTE LTD V WINKS

[2009] UKEAT 0049_08_2104, Employment Appeal Tribunal, The Honourable Lady Smith, 21 April 2009

Employment – Jurisdiction in unfair dismissal – Oil rig worker employed abroad – Whether British tribunals had jurisdiction – Application of Lawson v Serco – Whether “substantial connection” test applied

Mr Winks, a British citizen, was employed by the defendant Singaporean company (DDPL) to work on its Singapore-registered oil rig operated by a UK company (DDL) off the Nigerian coast. He was dismissed and pursued a claim for unfair dismissal before the Employment Tribunal in Aberdeen. He in the first place pursued the claim against DDL, arguing that it was his employer; however it became clear that DDPL was his employer and the question then arose whether the Employment Tribunal had jurisdiction at all. The Employment Tribunal in Aberdeen held that it did have jurisdiction. On appeal, Smith LJ held that the Tribunal had erred in so holding and dismissed the claim. On the authority of Lawson v Serco, if an employee did not ordinarily work in Great Britain or could not be regarded as doing so because he had his base in Great Britain, then it was only in exceptional circumstances that there would be jurisdiction. The character of those circumstances must be that he had been recruited in Britain by an employer who was British for the purposes of furthering, by working abroad, the British business of that employer, not business activities carried on by the British business abroad. Further, jurisdiction would not arise where the employee whilst employed by a British employer was not working abroad for that employer but was actually working for the business of another foreign employer. The proper law of the relevant contract of employment was irrelevant. In Lawson v Serco, Lord Hoffman could not be read as having either expressly or implicitly approved a formulation of the test for the existence of jurisdiction as being a matter of asking whether or not the employment had a “substantial connection” with Great Britain.